In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the U.S. Supreme Court held that when an attorney ignores his or her client's directive to file an appeal after a guilty plea or conviction at trial, prejudice to the defendant should be presumed "with no further showing from the defendant of the merits of his underlying claims." As a follow-on to Flores-Ortega, the Court in Garza v. Idaho extended that presumption to cases in which the guilty plea was pursuant to a plea agreement that contains a plea waiver. Criminal defendants who challenge their conviction based on ineffective assistance of counsel must satisfy the familiar two-pronged inquiry under Strickland v. Washington, 397 U.S. 759 (1970): (1) "that counsel's representation fell below an objective standard of reasonableness" and (2) that any such deficiency was "prejudicial to the defense." To show prejudice, defendants typically have to prove the outcome of their case would have been different but for the attorney's conduct. But in some cases, the courts are to presume that the conduct was prejudicial to the defense, such as "when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken." Flores-Ortega, 528 U.S. at 484. Before Garza, that had been the rule when it came to convictions, but there was a circuit split as to whether it applied even in the event of a guilty plea to a plea agreement with a concomitant appeal waiver. Garza resolved that split by holding that the Flores-Ortega presumption applies even when there is an appeal waiver. Notably, Justice Clarence Thomas dissented. In part of his opinion, joined only by Justice Neil M. Gorsuch, Justice Thomas took more general exception to the Court's interpretation of the Sixth Amendment. He noted, "Yet, the Court has read the Constitution to require not only a right to counsel at taxpayers' expense, but a right to effective counsel." He argued, "Because little available evidence suggests that this reading is correct as an original matter, the Court should tread carefully before extending our precedents in this area."
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